Alabama welcomes nitrogen execution, a new attempt to solve an old challenge

Ever since America has had the death penalty, there have been questions about how best to carry it out. Thursday’s execution of Kenneth Eugene Smith in Alabama, the first US execution in which the death was caused by asphyxiation with nitrogen gas, gave no sign of resolving the legal, moral and technical questions that have long plagued states as they determine the ultimate punishment.

More recently, problems with the purchase, administration and effects of lethal drugs have led states to scramble for alternatives ranging from the old — firing squads, electric chairs and gas chambers — to the unproven, like Alabama’s use of a mask to coerce Mr. Smith. to breathe nitrogen instead of air.

Journalists who witnessed Mr. Smith’s execution on Thursday reported that he was “shaking and convulsing” for at least two minutes before he started breathing heavily. State attorneys said in court documents that he would lose consciousness within seconds.

After Mr. Smith’s death, Alabama’s attorney general, Steve Marshall, hailed the execution as a “historic” development. He criticized opponents of the death penalty for pressuring “anyone who helps states in that process.”

“They don’t care that Alabama’s new method is humane and effective, because they know it’s easy to implement,” he said in a statement.

Maya Foa, joint executive director of Reprieve, a human rights group, disputed that claim, saying lethal injection has also been called “humane,” but federal judges have since compared it to waterboarded or burned at the stake.

“Executing states are constantly looking for ways to pretend that executions are medical and modern rather than brutal and violent,” Ms Foa said.

Beginning in 2015, Oklahoma, Mississippi, and then Alabama became the first three states to approve the use of hypoxia in nitrogen executions. Oklahoma and Mississippi have listed it as a backup method if lethal injections are deemed unconstitutional or if the drugs used in them become unavailable. Alabama offered death row inmates a choice between nitrogen hypoxia and lethal injection.

Mr Smith chose nitrogen after surviving an hours-long attempt to execute him by lethal injection in 2022, during which he was stabbed repeatedly with needles and placed in what he called a “reverse crucifixion position”. But he continued to fight a legal battle against the use of nitrogen and the state’s protocol for administering it.

Even states that have considered less common methods of capital punishment have been reluctant to use them. In 2021, the South Carolina legislature authorized execution by electric chair or firing squad, but then passed a law that shields the identities of pharmaceutical companies and officials involved in executions from the public, making it easier to obtain the drugs needed. The state then announced that it was ready to resume lethal injections.

In 2018, the director of Oklahoma’s prison system announced that the state would begin using nitrogen gas, complaining that he had spent his time in office on a “crazy hunt” for lethal injection drugs that included talking to “bad guys” and making referrals. invitations to the “back streets of the Indian subcontinent”.

But the change never happened. The state said in 2020 that it too had obtained a reliable supply of the drugs needed to perform lethal injections. Critics said the three states approved the use of nitrogen without adopting a protocol for its use. Alabama is the only state to eventually develop one.

At least one other state, Nebraska, is considering legislation that would do so authorize the use of nitrogen hypoxia. Nebraska last executed an inmate in 2018, its supply of the lethal injection drug has run out, and it has no way to execute 11 people on death row, according to The Lincoln Journal Star.

In general, states prefer to tinker with their existing enforcement protocols rather than try something new, said Deborah Denno, a professor at Fordham University School of Law. “States will stick with the same method as long as they can, because if they change, they’re admitting there was a problem,” she said.

She said it was difficult to predict whether the apparently successful execution of Mr. Smith to make other countries more willing to consider adopting nitrogen hypoxia. The number of executions has declined over time from a high of 98 in 1999 to a low of 11 in 2021.

The decline has a variety of causes, including restrictions on the execution of people with cognitive disabilities, increased awareness of wrongful convictions and racial disparities, and restrictions by pharmaceutical companies on the use of their products.

The numbers began to rise again as states found ways to obtain the deadly drugs or came up with new protocols.

Such adjustments have happened before. When hangings were considered slow and gruesome, and an indecent form of public entertainment, executioners tried to improve things by using gallows instead of tree branches, and then scaffolding instead of gallows, Mrs. Denno wrote. But the effort was “plagued by guesswork and inconsistencies,” she said.

Eventually, the New York State Commission charged with making executions more humane came up with the electric chair. His first victim, in 1890, twitched for half a minute after being pronounced dead, Ms. Denno wrote.

The US Supreme Court has never overturned the method of execution. In 2018, it set a standard that the chosen method cannot “superadd” terror, pain or shame, said Robin Maher, executive director of the Death Penalty Information Center. But prisoners who object to the proposed method of execution must provide a feasible and readily available alternative, the court said.

In that 2018 case, an inmate, Russell Bucklew of Missouri, had already suggested nitrogen hypoxia as an alternative, but was rejected. He was not the only prisoner who tried to choose nitrogen gas. In 2022, Richard Atwood, an Arizona death row inmate, petitioned the state use nitrogen in the gas chamber instead of cyanide. Cyanide executions have been described as lengthy and excruciating. And Mr. Atwood’s mother was Jewish and escaped from the Nazis, who used a form of cyanide in their gas chambers.

The state denied the request, and Mr. Atwood died by lethal injection.

Proponents of nitrogen hypoxia called it painless and “almost perfect” method of execution. But experts, including Dr. Philip Nitschke, a pioneer in assisted suicide who has witnessed dozens of deaths from nitrogen hypoxia, was warned of the risk of significant suffering if things went wrong. Opponents of the death penalty argue that the method is experimental and could prove dangerous to those who carry it out. Nitrogen gas has caused deaths in industrial accidents and has been used in physician-assisted suicides, but it had never been tested in a death chamber before Thursday night.

Even if the execution of Mr. Smith had no unintended consequences, opponents of the death penalty said the suffering could be hard to see. Autopsies of people killed by lethal injection suggest that their pain was masked, not reduced, by the paralytic.

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